Com., Dept. of Public Safety v. Powers

• Decision Date: 13 February 1970
• Citation: 453 S.W.2d 260
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Barry POWERS, a/d/a Barry Douglas Powers, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 260

453 S.W.2d 260

COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Barry POWERS, a/d/a Barry Douglas Powers, Appellee.

Court of Appeals of Kentucky.

Feb. 13, 1970.

As Modified on Denial of Rehearing April 24, 1970.

Mary Jo Arterberry, Dept. of Public Safety, Division of Driver Licensing, Frankfort, for appellant.

J. A. Gregory, Jr., Murray, for appellee.

CULLEN, Commissioner.

Barry Powers' motor vehicle operator's license was suspended for six months by the Department of Public Safety, under KRS 186.565, upon receipt by the department of a sworn report of police officer of the city of Murray, Kentucky, that he had arrested Powers for drunken driving, that he (the officer) had reasonable grounds to believe Powers had been driving a motor vehicle in this state while under the influence of intoxicating beverages, and that Powers had refused to submit to a chemical blood test upon the request of the officer. Powers requested a hearing before the Commissioner of Public Safety, under KRS 186.565(4). The request was granted and an evidentiary hearing was held, at which there was considerable evidence addressed to the question of whether Powers had 'refused to submit to the test upon request of the officer,' which is one of the issues the statute says is within the scope of such a hearing. The commissioner found as a fact that Powers had refused to take the test, and entered an order sustaining the suspension of Powers' license. Powers then appealed to the Calloway Circuit Court, under KRS 186.565(5), where the commissioner's ruling was reviewed, on the record of the hearing before him, as to whether his ruling was 'supported by substantial evidence and whether his action * * * (was) arbitrary or capricious.' The circuit court found that the ruling was arbitrary on three grounds, one of which was that the evidence at the hearing before the commissioner would not sustain the finding of the commissioner that Powers had been requested to take a blood test. Accordingly, the court entered judgment setting aside the order of suspension of license. The Department of Public Safety has appealed.

Since that issue is dispositive of the case, we shall confine our consideration to the one issue of whether the evidence at the hearing before the commissioner was sufficient to sustain the finding of the commissioner that Powers had been requested to take a blood test, and had refused. We shall quote the significant testimony, with supplied emphasis.

The arresting officer testified that on the way from the place of arrest to the police station he 'advised * * * (Powers) of his right to a blood alcohol test * * * I asked Mr. Powers if he would like a * * * Blood Alcohol Test. * * * 'On cross examination this officer's testimony was:

'38. Q. Did you put your language in the form of a demand that he take it?

A. No, sir.

39. Q. Did you tell him to submit to a blood alcohol test?

A. I offered him a blood alcohol test.

47. Q. It says in the language of the statute, 'the law enforcing agency shall designate which of the aforementioned tests shall be administered, namely, a blood, breath, or urine or saliva test'. Did you designate that one of these was to be administered or did you merely ask him if he would like to take one?

A. I asked him about the blood alcohol test * * * if he would be willing to take a blood alcohol test and he told me 'No, sir.'

48. Q. Now, at this stage of the...